THE ROLE OF LOCAL GOVERNMENT IN ACHIEVING SPATIAL
EQUITY THROUGH THE REALISATION OF THE RIGHT TO
HOUSING IN SOUTH AFRICA
By
Fungai Paul Mudau
LLB (Limpopo) LLM (Pretoria) LLM (Western Cape)
Student Number: 1287796
A Thesis submitted in fulfilment of the requirements for the degree of
Doctor of Philosophy (PhD) in Law
in the School of Law, University of the Witwatersrand
Supervisor:
Professor Marius Pieterse
Professor of Law
BLC (Law) LLB LLM (Pretoria) PhD (Wits)
20 October 2023
i
The Role of Local Government in Achieving Spatial Equity Through the Realisation of
the Right to Housing in South Africa
Fungai Paul Mudau
Abstract
This Thesis deals with the role of local government in overcoming spatial inequalities in
South African cities, with a particular focus on housing and access to well-located urban land.
The primary focus is on whether the legal role of local government in housing matches its
rights-related responsibilities and its role in achieving spatial equity. Municipalities have
limited legal powers, policy scope, and budget for housing. With overstretched programmes
and fiscus, certain municipalities are reluctant to assume housing delivery roles. However,
numerous court cases bind municipalities by assigning them increased rights-based
responsibilities which they may not be adequately equipped or empowered to implement. The
problem which therefore unfolds relates to the inevitable need to address the obligations to
realise the right of access to adequate housing of the urban poor within the limited legal,
institutional, and structural role that local government plays in housing delivery, as well as
with the limited resources at its disposal. The challenges associated with the realisation of
local government’s housing-related powers, functions, and responsibilities become
simultaneously more complicated and less insurmountable when viewed together with local
government’s legal powers and functions pertaining to spatial planning. As a result, this
Thesis investigates the articulation between housing and planning-related legal competencies
and responsibilities of local government, in seeking to ensure that local government can fulfil
its constitutional developmental role and contribute to the achievement of spatial equity.
Selected case studies of the metropolitan municipalities of Cape Town, Johannesburg, and
eThekwini are utilised to explore the emerging trends, issues, and challenges in practice.
Key words: central business district, city centre, competency, decentralisation, delegation,
devolution, functions, location, local government, powers, right to housing, responsibility,
role, spatial equity, spatial inequalities, spatial segregation, spatial planning, urban cores.
ii
Cut-Off Date
The research for this study was completed in October 2023. The study reflects the legal
position in South Africa as of this date.
iii
Declaration of Originality
I, Fungai Paul Mudau, do hereby declare that ‘The role of local government in achieving
spatial equity through the realisation of the right to housing in South Africa’ is my
original work and has not been submitted for any degree or examination in any university or
institution of higher learning. While I have relied on numerous sources and materials to
develop the main argument presented in this Thesis, all the materials and sources used are
duly acknowledged and properly referenced.
Signature:
Date: 20 October 2023
iv
Dedication
To the loving memory of my late Mother, Ms Tambu Selinah Sibanda (06 May 1959 – 09
July 2023), and my daughter, Thabile Mudau, who lost a pillar of strength but gained a
guiding angel in her late Grandmother.
Mom, with your passing at a moment when I was completing my PhD Thesis, amending the
sections of Dedication and Acknowledgements was too painful and difficult for me more than
writing the entire Thesis itself. I will always love you, Mom. May your soul rest in peace and
may the Almighty God happily receive you in Heaven. Asante Sana Mama.
v
Acknowledgements
My academic/educational journey revolves mainly around the setting of personal goals and
pursuing them with discipline; constant nurturing by elders; family support and gratification;
and above all, the benediction bestowed by the Almighty God. From Makushu Primary
School to Musina High School through the Universities of Limpopo, Pretoria, Makerere,
Western Cape, and finally the Witwatersrand. The humble beginning is elevated in ever-
lasting glory.
I would like to express my gratitude to the following:
First and foremost, my utmost gratefulness is wholeheartedly conveyed to the Almighty God
for the persistent blessing, mercy, grace, protection, shininess, favour, and peace that He
bequeaths upon me, from time to time.
My supervisor, Prof Marius Pieterse. Having introduced the aspects of spatial planning and
spatial equity to my doctoral research. Initially, it was a daunting task. However, his solid,
critical, and eye-opening comments and suggestions greatly assisted me in fully grasping the
art of grey areas in the research. I truly appreciate his splendid guidance that culminated in
the completion of my doctoral research and the subsequent awarding of the PhD degree.
Prof Cathi Albertyn, who initially served as my co-supervisor, for awarding me the
scholarship of the NRF South African Research Chair in Law, Equality and Social Justice.
She has made my dream to become possible. Thank you so much.
I hereby acknowledge the additional financial support I have received from both the Wits
Postgraduate Merit Award and the Unisa Study Assistance.
I would like to also express my gratefulness for the support from my current and former
colleagues at the University of South Africa (Unisa): Mrs Mapula Senona, Prof Babatunde
Fagbayibo, Prof Aubrey Manthwa, Prof Lee Stone, Prof Isaac Shai, Mr Sello Selelo, Ms
Mutondi Mulaudzi, and Dr Justin Ramages.
vi
Further appreciation is likewise extended to fellow academicians who in varying degrees
have contributed to my academic growth: Prof Hoolo ‘Nyane, Dr Crystal Mokoena, Dr
Khulekani Moyo, Prof Frans Viljoen, Prof Magnus Killander, Prof Nico Steytler, Prof
Jaap de Visser, Prof Tinashe Chigwata, Dr Michelle Maziwisa, Prof Ademola Jegede,
Dr Daniel Ruhweza, Adv Themba Mathebula, and Adv Mashele Rapatsa.
Dr Gaopalelwe Mathiba, is a dedicated foot soldier, whose eagerness for academic
excellence and mutual inspiration has propelled us to enrol for PhDs and pursue academic
careers. I thank you for being my best academic friend since our LLM studies at the
University of the Western Cape.
I am also grateful to Mr Petrus Chauke and Mrs Angela Chauke for accommodating me in
Johannesburg as I was struggling to find my feet during the commencement of my PhD
studies.
I will always appreciate my parents: the late Ms Tambu Sibanda and Mr Bethuel Mudau.
Thank you for your love, care, and support, through thick and thin. Although she is now late,
in spirit, Mom is joyously celebrating my achievement with me.
A special thanks to my brothers, Patrick (elder) and Peter (twin), for providing moral
support and helping with caring for my daughter, Thabile, during difficult times. Their
contributions made a real difference in my ability to complete this Thesis. With our collective
achievements, we have all made our Mom proud. Let us keep on making her prouder.
I am deeply grateful to my wife, Moloko, for her unwavering love and constant support
throughout my PhD journey. Her patience during late nights, early mornings, and moments of
stress was invaluable. She was not only my rock but also my biggest cheerleader.
I am also thankful for the love, care, and support from my family and relatives at large:
Joseph Sibanda, Thomphani Petla, the late Milana Sibanda, Esther Ngwenya,
Christopher Murengwa, Totinah Nkumbudzi, Mosiwa Mosiamo, Elizabeth Molea, Julia
Muleya, Ernest Rambuda, Margret Sibanda, Francis Mudau, Pastor George Onius
Molea, Gracious Sibanda, Khomotso Malebatja, George Muhlanga, Brenda Mbedzi,
and Jonathan Chinyama.
vii
There are so many dear friends who, over the years, have offered enormous moral, social, and
spiritual support. Thus, I hereby acknowledge Shepherd Cassim Nthala, Adv Nico Mawela,
Valley Pesulo, Christopher Ramahama, Comet Mosena, Tetelo Motala, Aerole Muleya,
Thabo Motau, Oupa Rasiluma, Misheck Muhlanga, Darlington Raseluma, Renee
Mohale, Lethabo Mashaba, Misheck Munyai, Hlatse Nkune, Thabiso Ramphabana,
Thandekile Mdhluli, Lincoln Kwinda, Rachel Mkhonto, Mayron Nemathithi, Elizabeth
Ndhlovu, Ambani Ramaloko, Mercy Ndhlovu, Mary Siko, Rendani Lukhwa, Moloko
Seakamela, Chanazi Magwira, Takalani Ramalivhana, Keeaaga Moyo, Moses Nare, and
Morris Sibanda.
viii
Publications and Conference Contribution Emanating from Doctoral Studies
Publications
Mudau P & Kona N (2021) ‘A rights-based approach to informal street-trading challenges in
Tshwane Metropolitan Municipality’ ESR Review: Economic and Social Rights in South
Africa 22(3) 22-27.
Mudau P (2020) ‘Western Cape High Cape sets a new benchmark for promoting spatial
equity, access to land and housing’ Local Government Bulletin 15(3).
Conference contribution
Mudau P ‘Access to land, the right to housing and spatial equity: An urban local government
perspective’, the Law and Criminal Justice Academic Conference, School of Law, University
of Venda, 28 October 2022.
Other publications produced during doctoral studies
Mudau P ‘Digital Authoritarianism and Human Rights During Elections in Zimbabwe’ in
Ilori T & Killander M (eds). Communication Surveillance Law and Human Rights in Africa.
Pretoria: Pretoria University Law Press (Forthcoming).
Mudau P & ‘Nyane H (2023) ‘Reasons for the low voter turnout in Lesotho’s 2022
elections’ Journal of African Elections 22(1) 121-141.
Mudau P (2022) ‘Promoting civic and voter education through the use of technological
systems during the Covid-19 Pandemic in Africa’ 22(1) African Human Rights Law Journal
108-138.
Mudau P ‘The role of the African Charter on Values and Principles of Public Service and
Administration in promoting good governance’ (2022) 26(1) Law, Democracy &
Development 148-167.
Mudau P & ‘Nyane H ‘A critical analysis of Zimbabwe’s non-implementation of
constitutional injunctions on devolution’ (2022) 37(2) Southern African Public Law 1-26.
ix
Mudau P ‘The implications of food-parcel corruption for the right to food during the Covid-
19 pandemic in South Africa’ (2022) 23(5) ESR Review: Economic and Social Rights in
South Africa 4-9.
Kruger P, Moyo K, Mudau P, Pieterse M & Spies A ‘Republic of South Africa: Legal
Response to Covid-19’ in King J, Ferraz O et al (eds) The Oxford Compendium of National
Legal Responses to Covid-19. Oxford: Oxford University Press (2021).
Mudau P & Mtonga S ‘Extrapolating the role of transformative constitutionalism in the
decolonisation and Africanisation of legal education in South Africa’ (2020) 14(1) Pretoria
Student Law Review 44-57.
Papers Under Review
Mudau P ‘A legal analysis of local government’s housing roles, powers, functions and
responsibilities in South Africa’, Journal of Comparative Law in Africa.
x
List of Abbreviations and Acronyms
ACHPR African Commission on Human and Peoples' Rights
ANC African National Congress
AU African Union
BNG Breaking New Ground
CBD Central Business District
CEDAW United Nations Convention on the Elimination of All Forms of Discrimination against
Women
CERD Committee on the Elimination of Racial Discrimination
CESCR Committee Committee on Economic, Social and Cultural Rights
CoGTA Department of Cooperative Government and Traditional Affairs
CRC Convention on the Rights of the Child
DFA Development Facilitation Act 67 of 1995
DMA Disaster Management Act 57 of 2002
ECOSOC United Nations Economic and Social Council
EHSP eThekwini Housing Sector Plan
EPHP Enhanced People’s Housing Process
GEAR Growth, Employment and Redistribution Program
HDA Housing Development Agency
HSDG Human Settlement Development Grant
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of Racial Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
IDP Integrated Development Plan
IGRFA Intergovernmental Relations Framework Act 13 of 2005
IRDP Integrated Residential Development Programme
IUDF Integrated Urban Development Framework
MDGs Millennium Development Goals
MEC Member of the Executive Council
MINMEC Minister and Members of Executive Council
MSDF Municipal Spatial Development Framework
MTSF Medium-Term Strategic Framework
NDP National Development Plan
NHFC National Housing Finance Corporation
NHSS National Housing Subsidy Scheme
xi
OHCHR Office of the High Commissioner for Human Rights
PHSHDA Priority Human Settlements and Housing Development Areas
PIE ACT Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
RDP Reconstruction Development Programme
SERAC Social and Economic Rights Action Centre
SAHRC South African Human Rights Commission
SDGs Sustainable Development Goals
SDF Spatial Development Framework
SERI Socio-Economic Rights Institute of South Africa
SHIs Social Housing Institutions
SPLUMA Spatial Planning and Land Use Management Act 16 of 2013
UCLG United Cities and Local Governments
UDHR Universal Declaration of Human Rights
UISP Upgrading of Informal Settlements Programme
UN United Nations
UNCRPD United Nations Convention on the Rights of Persons with Disabilities
UNDP United Nations Development Programme
UN-HABITAT United Nations Human Settlements Programme
USDG Urban Settlement Development Grant
WHO World Health Organization
xii
Table of Contents
Abstract ................................................................................................................................................... i
Cut-Off Date .......................................................................................................................................... ii
Declaration of Originality ................................................................................................................... iii
Dedication ............................................................................................................................................. iv
Acknowledgements ............................................................................................................................... v
Publications and Conference Contribution Emanating from Doctoral Studies ........................... viii
List of Abbreviations and Acronyms .................................................................................................. x
Table of Contents ................................................................................................................................ xii
Chapter 1 ............................................................................................................................................... 1
Introduction ........................................................................................................................................... 1
1 Introduction and background to the study 1
2 Defining “spatial equity” 11
3 The challenge of achieving spatial equity in the 1996 Constitution and the role of housing 14
4 Research problem, research questions, research objectives, and research methodology 18
5 Literature review 22
6 Terminological clarifications 24
7 Organisation of chapters 27
Chapter 2 ............................................................................................................................................. 30
The Right to Housing Under International, Regional, and Domestic Human Rights Laws ........ 30
1 Introduction 30
2 International human rights systems 31
2.1 The foundation of the right to adequate housing in international law instruments 31
2.2 The International Covenant on Economic, Social and Cultural Rights 32
2.2.1 Integral components of the right to adequate housing: the CESCR General Comment No 4
33
2.3 Other international human rights treaties 42
2.4 Soft law 45
2.5 The African regional human rights system 48
3 Obligations of local government: Global patterns 52
4 Domestic human rights system in South Africa 56
5 Adjudicating the constitutional right to adequate housing 65
5.1 Legal security of tenure 68
5.2 Availability of services, materials, facilities, and infrastructure 69
5.3 Affordability 70
5.4 Habitability 71
xiii
5.5 Accessibility 72
5.6 Location 74
5.7 Cultural adequacy 78
6 Conclusion 80
Chapter 3 ............................................................................................................................................. 82
The Roles, Powers, Functions and Responsibilities of Local Government Pertinent to Housing
Provision .............................................................................................................................................. 82
1 Introduction 82
2 Constitutional framework for multi-level system of government 83
2.1 Centralised federal system of government 83
2.2 Structure of multi-level system of government 84
2.3 Principles of co-operative government and intergovernmental relations 84
2.4 Supervision of local government 86
3 The evolution of local government reform 90
3.1 Status of local government before 1994 90
3.2 Status of local government after 1994 91
4 General powers of local government 92
4.1 Original powers 92
4.2 Assigned powers and subsidiarity 93
4.3 Fiscal powers 95
4.4 Administrative powers 97
5 Local government’s housing roles, powers, functions, and responsibilities 98
5.1 Constitutional framework 98
5.2 Legislative framework 101
5.3 Policy framework 111
5.4 Accreditation and Assignment of housing powers and functions 122
5.5 Unfunded mandates 128
6 Reflections 131
Chapter 4 ........................................................................................................................................... 133
The Roles, Powers, Functions, and Responsibilities of Local Government Pertinent to Spatial
Planning ............................................................................................................................................. 133
1 Introduction 133
2 Defining spatial planning and related key concepts 135
3 The evolution of municipal spatial planning 140
4 Constitutional framework 142
5 Judicial delineation of spatial planning powers 145
6 Unpacking the Spatial Planning and Land Use Management Act (SPLUMA) 152
7 Connecting municipal spatial planning and housing 159
xiv
8 Conclusion 166
Chapter 5 ........................................................................................................................................... 168
The Challenges of Local Government’s Housing-Spatial Planning Powers Pertinent to the
Achievement of Spatial Equity ........................................................................................................ 168
1 Introduction 168
2 Case studies 169
2.1 City of Cape Town Metropolitan Municipality 169
2.2 City of Johannesburg Metropolitan Municipality 180
2.3 eThekwini Metropolitan Municipality 187
3 Conclusion 196
Chapter 6 ........................................................................................................................................... 199
Toward the Achievement of Spatial Equity Through the Realisation of the Right to Housing . 199
1 Introduction 199
2 Summary of findings 200
3 Recommendations 206
3.1 Devolution of housing powers and functions 207
3.2 Viable co-operative governance in rapid release of well-located land 208
3.3 Housing developments in well-located areas 211
3.4 Legal dimensions of spatial equity-based professional development initiatives 212
4 Areas for further research 215
4.1 Legal dimensions of rural-urban interdependency 215
4.2 Integrated public transport 216
4.3 Gender-based spatial discrimination 217
4.4 Countering urban real estate market forces 218
4.5 Enhancing spatial equity through local government's service delivery functions 219
4.6 Cultural adequacy pertaining to housing projects and spatial equity 221
5 Overall Conclusion 222
Bibliography ...................................................................................................................................... 225
1
Chapter 1
Introduction
1 Introduction and background to the study
Inequality is increasing worldwide. It also manifests itself spatially. South Africa is, due to its
history, one of the notable places where this spatial manifestation of inequality is most
distinguishable.1 Markedly, spatial inequality is discernible in cities and towns, where
segregation and inequalities in living standards, access to housing and essential services, etc.,
abound.2 More challenges relate to access to jobs, public space and services, and social
capital.3 The apartheid system over-concentrated resources in the hands of the few,
predominantly white people.4
The consequences of apartheid spatial planning were highlighted by the Constitutional Court
in Fedsure Life Assurance Ltd & Others v Greater Johannesburg Transitional Metropolitan
Council & Others when it was held that:
[The] historically “White” areas were characterised by a developed infrastructure, thriving
business districts, and valuable rateable property. Those in so-called “Black”, “Coloured”
1 The Republic of South Africa is considered to be the most unequal country in the world, see Gavin Keeton
‘Inequality in South Africa’ (2014) 74 The Journal of the Helen Suzman Foundation at 26; Alison Todes and
Ivan Turok ‘Spatial inequalities and policies in South Africa: Place-based or people-centred?’ (2017) Progress
in Planning at 4. Inequality is recognised as one of the most salient features of the South African society, see
Statistics South Africa ‘Inequality trends in South Africa: A multidimensional diagnostic of inequality’ (2019)
at 2.
2 Tony Binns and Etiene Nel ‘African development: ‘Hopeless Africa, ‘Africa Rising’ or somewhere in
between’ in Tony Binns et al (eds) The Routledge Handbook for African Development (2018) at 275. United
Nations Human Settlements Programme (UN-HABITAT) refers to “socio-spatial exclusion” which denotes an
array of processes contributing to the geographic marginalisation of certain individuals and groups owing to
their social and economic statuses and locations of residence. The socio-spatial exclusion is characterised by the
urban poor’s inability to access or effectively use a good deal of facilities and resources that are necessary to
lead a decent life and position people to take advantage of available opportunities. In urban contexts, and due to
their identity, these social groups suffer from disproportionate “disadvantage”, See UN-HABITAT ‘Issue Paper
on Informal Settlements’ (2015) at 1. The three most familiar forces that shape spatial discrimination are class,
race, and gender, see Edward W Soja ‘The city and spatial justice’ (2009) 1 JSSJ at 3.
3 The poor continue to struggle to access economic services with high transport costs, and constant use of
unreliable public transport while the rich increasingly privatize their lives, enjoying high-quality private health,
education, security, and entertainment, see Harlan C.A Cloete Guide to effectively manage human resource
development in South African local government (2019) 2; Southern Africa Labour and Development Research
Unit ‘Spatial poverty and inequality in South Africa: A municipality level analysis’ (2021) at 1.
4 Erika de Wet The Constitutional Enforceability of Economic and Social Rights: The meaning of The German
Constitutional Model for South Africa (1996) at ix.
2
and “Indian” areas, by contrast, were plagued by underdevelopment, poor services, and
vastly inferior rates bases.5
This depressing legacy leaves tracks of “profound social polarisation, extreme economic
inequalities, and spatially divided cities [which] massively complicates the task of building a
new society in which, as their constitutional right, people should have access to adequate
housing”.6 Accordingly, among 164 countries, South Africa is ranked first by the World
Bank in the global poverty database.7 Turok captures South Africa’s spatial inequalities as
follows:
The twin pillars of spatial development are the distribution of jobs and population. Colonial
and apartheid governments tended to force (black) people apart from economic
opportunities, at great cost to individuals, families, and communities. More than two
decades after apartheid, there continues to be a gulf between where many people live and
where jobs and resources are concentrated. This aggravates unemployment and poverty for
people living on the periphery and imposes additional costs on their mobility.8
The Accelerated and Shared Growth Initiative for South Africa (AsgiSA) identifies three key
dimensions of structural inequity that result in economic marginalisation: the economy,
spatial inequality, and human capital.9 The lack of appropriate interventions may either
stimulate segregation, or possibly alleviate it, “depending on the legacies at play and the
5 1999 (1) SA 374 (CC) at paras 1 and 2. See also City Council of Pretoria v Walker 1998 (2) SA 363 (CC) at
paras 19 and 46.
6 Peter Wilkinson ‘Housing policy in South Africa’ (1998) 22(3) Habitat International at 226. See also Xavia S
Poswa Municipal Planning By-laws and the extent to which they give effect to the Spatial Planning and Land
Use Management Act 16 of 2013 (unpublished LLM dissertation, University of the Western Cape, 2017) at 4. In
post-1994 constitutionalism, political culture and jurisprudence, Modiri interprets spatial injustice as part of
constituent elements of colonial conquest, together with racism, dispossession, poverty, and epistemicide, see
Joel M Modiri ‘Conquest and constitutionalism: first thoughts on an alternative jurisprudence’ (2018) 34(3)
South African Journal on Human Rights 300, at 304.
7 World Bank ‘Inequality in Southern Africa: An assessment of the Southern African Customs Union’ (2022) at
1 and 9, available at https://tinyurl.com/4237mkz2 (accessed on 09 August 2022).
8 Ivan Turok ‘Worlds Apart: Spatial inequalities in South Africa’ in Michael N Smith (ed) Confronting
Inequality: The South African Crisis (2018). “The Apartheid (Afrikaans for ‘apartness’) political system of
separate development and inequality was broadly based on a racial hierarchy that systematically disadvantaged
those who were classified as ‘Coloured’, ‘Indian/Asian’ or ‘Black’”. Zander S Venter et al ‘Green Apartheid:
Urban green infrastructure remains unequally distributed across income and race geographies in South Africa’
(2020) 203 Landscape and Urban Planning at 1. The archetypal “Apartheid city” spatially segregated these race
groups and forcibly removed from “group areas”.
9 The Presidency of the Republic of South Africa ‘Accelerated and Shared Growth Initiative for South Africa
(AsgiSA): 2008 Annual Report’ (2008) at 9.
https://tinyurl.com/4237mkz2
3
willingness to intervene, the kinds of interventions used, the urban economic past and
present, and the type of welfare state in which the city is embedded”.10
The disparities apply at both the regional scale (between cities and isolated rural areas) and
the metropolitan scale (between the Central Business Districts (CBDs) and the main
townships).11 A lack of mobility restricts the urban poor from accessing possible income and
employment opportunities found in the CBDs.12 The inherited circumstances such as low
inter-generational mobility, inequality of opportunity, inequitable access to essential services,
the geography of economic inequality, and spatial patterns prevent most people from
achieving economic and social “success”.13
Cities’ drawbacks in managing the soaring population growth are exacerbated by inequitable
economic growth patterns.14 Peripheral areas exhibit structural spatial inequalities stemming
from urbanisation processes with “small towns on the edge, large peri-urban and commercial
farming areas, sprawling dormitory townships, huge swathes of displaced urbanisation in ex-
Bantustans, and remote industrial and mining areas”.15 Hence, uneven development
perpetuates inequality, unemployment, and poverty.
The rapid urbanisation process is predominately occurring in metropolitan municipalities.16 It
also has the prospects to accelerate socio-economic development,17 provided it is managed
10 Ibid.
11 J Budlender and L Royston ‘Edged Out: Spatial mismatch and spatial justice in South Africa’s main urban
centres’ (2016).
12 Kgaogelo Kgatjepe and Aurobindo Ogra ‘Sustainable transport for urban poor: A case of Johannesburg’
(2016) at 365; Juaneé Cilliers and Hestia Victor ‘Considering spatial planning for the South African poor: An
argument for ‘planning with’ (2018) 72 Town and Regional Planning at 30.
13 The World Bank ‘Overcoming poverty and inequality in South Africa: An assessment of drivers, constraints
and opportunities’ (2018); Thomas Piketty ‘Theories of Persistent Inequality and Intergenerational Mobility’ in
Anthony Atkinson and Francois Bourguignon (eds) Handbook of Income Distribution (2000) 429; Gustavo
Marrero and Juan Rodríguez ‘Inequality of opportunity and growth’ (2013) 104 Journal of Development
Economics at 107
14 According to the Word Bank, “at the same time, inequality and poverty in urban areas is a growing challenge
as urban populations expand”, see the World Bank ‘Sustainable Development Goal 10 – Reduced inequalities:
Progress and prospects’ (2019) at 4, available at https://tinyurl.com/2fd9dj3p (accessed on 08 August 2022).
15 Stuart P Denoon-Stevens et al ‘Unpacking planners' views of the success and failure of planning in post-
apartheid South Africa’ (2022) 130 Cities at 2.
16 Section of 2 of the Local Government: Municipal Structures Act 117 of 1998 provides guidelines on the
establishment of metropolitan councils, and states as follows:
“(a) a conurbation featuring-
(i) areas of high population density;
(ii) an intense movement of people, goods, and services;
https://tinyurl.com/2fd9dj3p
4
effectively.18 Cities are increasingly the ideal sites for the actualisation of socio-economic
rights.19 In South Africa, by 2017, over 67 per cent of the entire population was already
residing in urban areas, including cities.20 An estimation of the United Nations indicates that,
by 2030, 71.3 per cent of the country’s population will be living in urban areas, reaching
nearly 80 per cent by 2050.21 “The 40 million people that will live in urban areas will mostly
be concentrated in Gauteng, eThekwini and Cape Town”.22
Against this backdrop, the mere repealing of apartheid’s segregation laws in a constitutional
democratic South Africa cannot abruptly reverse the repercussions of the erstwhile spatial
planning laws.23 Many years are required to redress this sordid legacy.24 Other factors
contributing to the persistence of these patterns include “concentrated economic power,
inertia in the built environment, and continuing unevenness in institutional capabilities across
(iii) extensive development; and
(iv) multiple business districts and industrial areas;
(b) a centre of economic activity with a complex and diverse economy;
(c) a single area for which integrated development planning is desirable; and
(d) having strong interdependent social and economic linkages between its
constituent units.” South Africa has eight metropolitan (Category A) municipalities which are: City of Cape
Town Metropolitan Municipality; Nelson Mandela Metropolitan Municipality (Port Elizabeth); eThekwini
Metropolitan Municipality (Durban); City of Johannesburg Metropolitan Municipality; Ekurhuleni Metropolitan
Municipality (East Rand); City of Tshwane Metropolitan Municipality (Pretoria); Buffalo City Metropolitan
Municipality (East London); and Mangaung Metropolitan Municipality (Bloemfontein).
17 The gradual but significant demographic shift towards an increasingly urban population causes cities to face a
multitude of rising inequality, exclusion, poverty, and proliferation of informal settlements, see Hangwelani
Hope Magidimisa-Chipungu and Lovemore Chipungu Urban Inclusivity in Southern Africa (2021) 12. See also
Thomas Coggin and Marius Pieterse ‘Rights and the city: An exploration of the interaction between socio-
economic rights and the city’ (2012) 23 Urban Forum at 257.
18 Andreas Scheba et al ‘The role of social housing in reducing inequality in South African cities’ (2021) at 3.
South African cities drive national economic growth. “The eight metropolitan municipalities contribute 57
percent to the national economy”, see National Treasury ‘Managing urbanisation to achieve inclusive growth: A
review of trends in South African urbanisation and suggestions for improved management of urbanisation’
(2018) at 8.
19 Marius Pieterse ‘Development, the right to the city and the legal and constitutional responsibilities of local
government in South Africa’ (2004) 131 The South African Law Journal at 149.
20 Statistics South Africa ‘South Africa: Urbanization from 2009 to 2019’ (2020) available at
https://tinyurl.com/4xtzr4v2 (accessed on 20 August 2022).
21 Department of Cooperative Governance and Traditional Affairs ‘South Africa’s national urban development
policy – the IUDF: An overview’ (2020) at 2.
22 David Gardner and Nick Graham ‘Analysis of the Human Settlement Programme and the Subsidy
Instruments’ (2017) at 46.
23 Qhamani N Tshazi ‘Why a blanket approach to redressing spatial inequity is flawed’ (2020) available at
https://tinyurl.com/5enft9e6 (accessed on 09 August 2022); Paul Hendler ‘the history of spatial planning and
land use in South Africa’ (2015) at 9.
24 Maxim Bolt and Tshenolo Masha ‘Recognising the family house: a problem of urban custom in South Africa’
(2019) 35(2) South African Journal on Human Rights (2019) 147 at 148; Saleem Badat ‘Redressing the
Colonial/Apartheid Legacy: social equity, redress and Higher Education admissions in democratic South Africa’
(2008) at 1.
https://tinyurl.com/4xtzr4v2
https://tinyurl.com/5enft9e6
5
the country”.25 When the African National Congress (ANC) ascended to power in 1994, it
encountered major obstacles in terms of redressing the legacy of apartheid.26 Subject to the
prescripts of the 1996 Constitution,27 the ANC government adopted a variety of
transformation interventions.
These interventions, including the Reconstruction Development Programme (RDP),28 have
produced a mixture of successes and failures, including the legacy of the apartheid spatial
landscape that largely remain intact almost 30 years after the end of the apartheid system.29
Thus far, within South African towns and cities, there are limited signs of diminished spatial
inequalities.30 In contrast, there are ever-growing housing shortages and a paucity of well-
located urban areas conducive to new housing developments, which therefore reproduce
divisions of the past spatial segregation.31
Unfortunately, the post-apartheid government lacked efficient and effective visions and plans
for managing urbanisation.32 The rapid urbanisation process produces the growth of backyard
informal rental housing among diverse urban populations.33 Informality “appears to have
taken the form of backyard shacks in established townships rather than free-standing shacks
in squatter settlements”.34 In the absence of decent housing, Foster observes that informal
25 See Turok op cit note 8 at 5.
26 Tinashe Chigwata ‘The system of local government in South Africa’ in Michelle R Maziwisa and Jaap de
Visser Local Government in South Africa: Responses to Urban-Rural Challenges (2021) at 3.
27 The Constitution of the Republic of South Africa, 1996.
28 The White Paper on Reconstruction and Development of 1994, at 7. Six principles of RDP were: (1) an
integrated and sustainable programme; (2) a people-driven process; (3) peace and security for all; (4) nation-
building; (5) link reconstruction and development; and (6) democratisation of South Africa.
29 Muna Shifa et al ‘Spatial inequality through the prism of a pandemic: Covid-19 in South Africa’ (2021) 13
Scientific African at 2; Remigius C Nnadozie ‘Access to basic services in post-apartheid South Africa: What has
changed? Measuring on a relative basis’ (2013) 16 The African Statistical Journal at 81.
30 Isolde de Villiers Law, Spaciality and the Tshwane Urban Space (unpublished LLD thesis, University of
Pretoria, 2017) at 5; Ivan Turok et al ‘Reducing spatial inequalities through better regulation: Report to the
High Level Panel on the assessment of key legislation and the acceleration of fundamental change’ (2017) at 60;
Calvin Nengomashe ‘Post-Apartheid Cities in South Africa: A Mirage of Inclusivity’ in Hangwelani Hope
Magidimisa-Chipungu and Lovemore Chipungu Urban Inclusivity in Southern Africa (2021) at 163.
31 Ibid.
32 Leslie J Bank et al ‘Introduction: Migrant labour after apartheid’ in Leslie J Bank et al Migrant Labour After
Apartheid: Inside Story (2020) 1.
33 Sarah Charlton ‘Housing for the nation, the city and the household: competing rationalities as a constraint to
reform?’ (2009) 26(2) Development Southern Africa at 301-315; Andreas Scheba and Ivan Turok ‘Informal
rental housing in the South: dynamic but neglected’ (2020) 32(1) Environment & Urbanization at 109; Andreas
Scheba ‘Backyard rental housing: Dynamic but neglected’ (2019) at iv.
34 Ivan Turok and Jackie Borel-Saladin ‘Backyard shacks, informality and the urban housing crisis in South
Africa: stopgap or prototype solution?’ (2016) 31(4) Housing Studies at 384; Philip Harrison et al (eds)
6
settlements epitomises a form of “self-help” for the urban poor.35 Resorting to urban “self-
help” is seen as a solution to the failure by the government and urban real estate markets to
provide affordable housing and essential services.36 Therefore, housing type refers to the
structure of a dwelling that is occupied by households as their home. The three main
categories of housing types are (1) formal permanent structures, (2) traditional structures, and
(3) informal non-permanent structures. Housing and the services people receive are indicators
of socio-economic peripherality, disadvantage, and marginality.37
Since 1994, the nature of housing developments has encouraged urban sprawl “through
extending existing housing areas to the urban periphery and achieving limited integration
with the rest of the city”.38 Millions of low-cost houses have been built by the government.
However, a common choice is to place these houses on cheaper land in urban peripheries.39
The aggravation of housing inadequacies is manifested by squalid living conditions.
Inhabitants of these informal settlements such as shantytowns, slums, and ghettos struggle to
receive basic services and sufficient water.40 Their lives are beset by poor sanitation and
piling solid waste,41 frequent shack-gutting fires,42 safety and security risks, and a variety of
other health hazards.43
Confronting fragmentation: Housing and urban development in a democratizing society (2003). The process of
rural-to-urban migration leads to the transfer of rural poverty to urban areas, Moipone Rakolojane ‘Rural and
Urban Development Issues’ in Frik de Beer and Hennie Swanepoel Introduction to Development Studies (2004)
at 21.
35 Sheila R Foster ‘Urban informality as a commons dilemma’ (2009) 40(2) Inter-American Law Review at 304.
The UN-HABITAT states that the following as part of the causes of informal settlements in urban areas:
“population growth and rural-urban migration, lack of affordable housing for the urban poor, weak governance
(particularly in the areas of policy, planning, land and urban management resulting in land speculation and
grabbing), economic vulnerability and underpaid work, discrimination and marginalization, and displacement
caused by conflict, natural disasters and climate change”, see UN-HABITAT op cit note 2 (2015) at 2.
36 Ibid.
37 Ibid 18.
38 Ibid.
39 Kedibone Phago ‘The development of housing policy in South Africa’ (2010) 29(3) Politeia at 88.
40 Section 27(1)(b) of the Constitution entitles everyone with the right to have access to sufficient water. Moyo
indicates that “access to safe water is essential to sustain human life and indispensable to ensure a healthy and
dignified life”, see Khulekani Moyo Water as a human right under international human rights law: Implications
for the privatisation of water services (unpublished PhD thesis, Stellenbosch University, 2013) at 1.
41 The Constitution in Section 24(a) provides that “everyone has the right to an environment that is not harmful
to their health or wellbeing”.
42 On a yearly basis, informal settlements are regularly ravaged by fire, rendering many people homeless. See
Richard Walls et al ‘Informal settlement fires in South Africa: Fire engineering overview and full-scale tests on
“shacks”’ (2017) 91 Fire Safety Journal at 997.
43 See Phago op cit note 39 at 88.
7
Another source of considerable contestation is that, from the beginning, the implementation
of the housing programmes faced some structural hindrances. Among the predicaments is
restrictions from the urban real estate market which makes well-located land in urban areas to
be very expensive. Thus, hampering the affordability of housing construction at scale. The
government’s housing programmes constantly face criticism for minimal commitment to
redressing the end results of spatial apartheid.44 Instead, the implementation of these
programmes has contributed to the problem by constructing most of the new housing
developments in the urban peripheries. The implementation process merely concentrates on
the number of housing units delivered rather than the creation of sustainable integrated
human settlements. While engaging on issues of socio-spatial inequality and racial
segregation, Abrahams et al,45 reveal that:
Informal housing continues to grow in inhospitable locations as population growth outpaces
housing production. A relatively passive policy in relation to the urban land market has
meant limited provision of affordable housing in good locations.46
The goal of achieving spatial integration through social housing programmes gets slimmer as
the market forces controlled by business interests continue to exclude the majority of poor
black people from being placed in well-located land that is close to opportunities found in the
CBDs.47 Furthermore, issues about access to land focus mainly on rural land, instead of
equally addressing access and use of urban land.48 Owing to various reasons, the land reform
and land restitution programmes are mainly restricted to rural areas, while the social housing
programme is used as an alternative measure for land redistribution in cities.49 This form of
planning reinforces under-development and aggravates regional disparities in terms of access
44 See Tshazi op cit note 23.
45 Caryn Abrahams et al ‘South Africa: National urban policies and city profiles for Johannesburg and Cape
Town’ (2018) at 1; M Kamrul Islam et al ‘Social capital and health: does egalitarianism matter? A literature
review’ (2006) 5(3) International Journal for Equity in Health at 1.
46 Ibid.
47 Ibid.
48 See Bolt and Masha op cit note 24 at 2; H Mostert et al Land Law and Governance: African Perspectives on
Land Tenure and Title (2017).
49 Marius Pieterse ‘Towards a right to the city? The slow convergence of rights to housing and land in South
African Constitutional jurisprudence’ (2022) 11 International Human Rights Law Review 36, at 41. The Labour
Tenants (Land Reform) Act 3 of 1996, the Interim Protection of Informal Land Rights Act 31 of 1996, and the
Extension of Security of Tenure Act 62 of 1996 enhanced rural tenure security in South Africa but their
application in urban had no or limited effect.
8
to land and resources.50 If housing stands for land reform in cities then housing programmes
must have a redistributive aim at least in terms of access to urban land.
Certainly, spatial segregation is incensed by the lack of well-located social housing
developments.51 In turn, land paucity intensifies housing inadequacies, lack of shelter, and
poverty.52 Revelations from the 2017 Land Audit illustrate the margins of individual
landowners by racial groups.53 Historically, the Natives Land Act54 set the fixed foundation
of spatial segregation by confining the black African majority to only 13 per cent of the land
in South Africa.55 Additionally, the country is facing massive contestations over land use and
ownership as well as tensions and conflicts over space and resources.56
Rural communities are also not spared the legacy of apartheid spatial planning. They
encounter spatial fragmentation, inequality, widespread poverty, and deprivation.57 These
areas are mainly found in Limpopo, North-West, Mpumalanga, Eastern Cape, and KwaZulu-
Natal - the provinces that during the apartheid era contained the “native” reserves of self-
50 Hangwelani H Magidimisa and Lovemore Chipungu Spatial Planning in Service Delivery: Towards
Distributive Justice in South Africa (2019) 3.
51 The Fuller Centre for Housing ‘Housing delivery in South Africa - Draft Report: Housing delivery 2014’
(2014) at 2. For instance, while facing the mushrooming of informal backyard dwellings, the Musina Local
Municipality similarly has stumbling blocks arising from the unavailability of land for future social housing
development, see Musina Local Municipality ‘Draft Spatial Development Framework: Full Report - 2014/15
Review’ (2015) at 129.
52 Noah K Marutlulle ‘A critical analysis of housing inadequacy in South Africa and its ramifications’ (2021)
9(1) Africa’s Public Service Delivery & Performance Review at 1.
53 Department of Rural Development and Land Reform ‘Land Audit Report: Phase II: private land ownership
by race, gender and nationality’ (2017) at 2. The erven ownership by race by provinces depicts a clear picture of
varying demographic racial dominance by races in different provinces as follows: “Whites own the largest
extent of erven land among racial groups at 152 624 ha or 83% in NC; Africans own the largest erven land
among racial groups in EC at 93 868 ha or 67%; Coloureds in the WC own the largest size of erven land at 15
119 ha or 11%, but less extent than Whites; similarly, Indians own their highest racial group erven land in KZN
at 15 232 ha or 20%, but less than Africans at 39% and Whites at 25% respectively” at 12.
54 The Natives Land Act 27 of 1913.
55 See Magidimisa and Chipungu op cit note 50 at 20.
56 Sarah Charlton ‘The state of land use management in South Africa’ (2008) at 16; Margot Rubin ‘Land
management and democratic governance in the city of Johannesburg’ (2008) at 22.
57 “Outside the cities this may be because poorer municipalities are more desperate for development, needs-
driven government grants fund housing and social infrastructure in lagging regions, and housing is one of the
few tangible benefits that politicians can deliver to hard-pressed communities”, see Turok et al op cit note 8 at 2.
See also Samuel Kariuki ‘Spatial defragmentation in rural South Africa: A prognosis of agrarian reforms’ in
Gilbert M Khadiagala et al (eds) New South African Review 6: The Crisis of Inequality (2018) at 218.
9
governing homelands based on ethnic federalism.58 Virtually, none of these provinces are in
the two richest provinces: the Western Cape and Gauteng.59
As a result, the quest for even development has placed “substantial responsibility on cities to
effectively plan and implement strategies that will both address the historical apartheid spatial
legacy and shape the future city”.60 Cities efficiently and effectively contribute towards the
country’s wider development goals of poverty eradication, reduction of inter-regional
inequalities, and stimulation of economic growth.61
This Thesis deals with the role of law and governance in overcoming a particular facet of
spatial inequality in South African cities, with housing and access to urban land at the
intersection of law, policy, and urban governance. While supporting housing rights and
improved quality of life, the laws, policies, and institutional frameworks for government-
subsidised housing developments provide poor, marginalised, and historically disadvantaged
South Africans with prospects for accessing adequate housing and essential services.62 In this
fashion, the necessary legal reforms are aimed at providing access to adequate housing and
creating human settlements that foster social, economic, and spatial integration and
inclusion.63 This desirable transformation can transpire in the achievement of aligned and
integrated human settlements, transportation, resilient infrastructure networks, and land
58 There were ten (10) homelands comprising of Venda, Lebowa, Gazankulu, KwaNdebele, Bophuthatswana,
Ciskei, KaNgwane, Qwaqwa, Transkei and KwaZulu. The homelands were designed for specific ethnic groups,
see Laura Evans ‘South Africa’s bantustans and the dynamics of “Decolonisation”: reflections on writing
histories of the homelands’ (2012) 64(1) South African Historical Journal at 117. See also Nico Steytler and
Johan Mettler ‘Federal arrangements as a peacemaking device during South Africa's transition to democracy’
(2001) 31(4) Publius: The Journal of Federalism at 93. More details are made as follows: “spatial
disaggregation of social data, such as income and water access, is particularly useful in South Africa as spatial
inequality was entrenched in the 1900s by the very limited service delivery to the ‘homelands’ (territories set
aside for black inhabitants as part of the apartheid agenda of racial segregation) and low-income urban and peri-
urban areas”, see Megan J Colea et al ‘Spatial inequality in water access and water use in South Africa’ (2018)
20 Water Policy at 37. During the apartheid system, few Africans had the rights to live in the cities, and all other
Africans linked to a “homeland” area which was meant to be a permanent, rural home. See Mark Napier
‘Making urban land markets work better in South African cities and towns: Arguing the basis for access by the
poor’ in SV Lall et al (eds) Urban Land Markets (2007) at 5.
59 Neva Makgetla ‘Inequality in South Africa’ in Gilbert M Khadiagala et al (eds) New South African Review 6:
The Crisis of Inequality (2018) at 17-18.
60 South African Cities Network ‘SPLUMA as a tool for spatial transformation’ (2015) at 7.
61 Pundy Pillay ‘Decentralisation and Service Delivery’ in Anne Mc Lenna and Barry Munslow (eds) The
Politics of Service Delivery (2009) at 140.
62 Andreas Matzarakis et al ‘Introduction’ in Andreas Matzarakis and Beta Paramita Equity, Equality and
Justice in Urban Housing Development (2018) at 2; Neil Klug et al ‘Inclusionary housing policy: A tool for re-
shaping South Africa’s spatial legacy?’ (2013) 28 Housing and the Built Environment at 667.
63 South African Cities Network ‘State of South African Cities Report 2016: The People’s Guide’ (2016) at 3.
10
governance that maximises cities’ requisite power and capacity in driving inclusive urban
development.64 With meaningful engagement between the government and the people,
municipalities, especially those operating in cities, can lead the nation’s development
projects.65
At the centre of this study is the critical analysis of the role of local government in achieving
spatial equity through the realisation of the right to housing in South Africa. Generally, the
term local government may refer to any local or sub-national government in a country,
including districts, villages, cities, provinces, municipalities, and towns.66 The powers of
urban local governments in relation to land developments for housing are determined by
domestic legal systems. In sequence, the applicable laws set the legal status of city
governments and the boundaries of city life and practice.67 At the outset, the precise goals
and structure of a decentralisation (of housing) programme and the strengthening of local
government must be clearly articulated and matched to available resources.68
At best, the quest for achieving spatial equity and the provision of access to adequate housing
can be implemented effectively by local governments that may have constitutional
recognition or be established by statute. They are designed to perform several functions,
encompassing the provision of essential services to local communities,69 and the performance
of functions delegated by the national government “under the latter’s control, direction, and
review”.70 When performing the delegated functions, they account to the national
government.
64 Karina Landman and Nana Ntombela ‘Opening up spaces for the poor in the urban form: trends, challenges
and their implications for access to urban land’ (2006) at 2.
65 OS Madumo and SB Koma ‘Local government reform in South Africa: The quest for review and
repositioning of municipal administration’ (2019) 8 Journal of Reviews on Global Economics at 581.
66 Office of the United Nations High Commissioner for Human Rights ‘Implementing the right to adequate
housing: A guide for local governments and civil society (2021) at 4. See also Nico Steytler ‘The Relationship
between Decentralisation and Constitutionalism in Africa: Concepts, Conflicts and Hypothesis’ in Charles
Manga Fombad and Nico Steytler (eds) Decentralisation and Constitutionalism in Africa (2019) at 34.
67 Gerald E Frug and David J Barron ‘International Local Government Law’ (2006) 38(1) The Urban Lawyer at
1.
68 Graham Sansom ‘Principles for effective local government legislation: Lessons from the Commonwealth
Pacific’ (2013) at 6.
69 Melissa N.S Ziswa An analysis of the decentralisation framework provided for in the African Charter on the
Values and Principles of Decentralisation, Local Governance and Local Development, 2014 (unpublished LLM
dissertation, University of the Western Cape, 2017) at 18.
70 Ibid.
11
2 Defining “spatial equity”
The ramifications of obstinate spatial inequalities invoke the necessity to formulate and
implement policies and programmes targeted at attaining “spatial equity”. The term “spatial
equity” has numerous definitions and measurements. Scholarly interest in the correlation
between spatial equity and the location of housing is not novel. For some researchers, spatial
equity is the concept of fairness and justice that simply involves the provision of equal access
to and distribution of basic public service goods, opportunities, resources, services, materials,
facilities, and infrastructure across different geographic areas or regions (e.g., a city, region or
a country) as measured by distance.71 The distribution process takes into account people who
live in different places in relation to their special needs and preferences.72
Spatial equity is concerned with ensuring that all people, regardless of their location, have
access to an equitable share of resources and opportunities. In essence, this distribution
largely considers factors such as needs, fairness, justice, population density, distance to
services and amenities, and the availability of transportation options, to ensure that
individuals and communities have equal access to the needed opportunities and resources.
The bedrock of spatial equity is the service level difference among a city or region’s public
facilities.73 Public policy and urban planning utilise spatial equity to address poverty and
inequality and to promote social and economic justice.
Moreover, with a substantive understanding of equality, measures to achieve spatial equity in
the long term should differentiate and disproportionately favour those who were
disadvantaged. The purpose is to elevate the “socially disadvantaged groups or highly needed
71 Yanhua Yuan et al ‘Spatial equity measure on urban ecological space layout based on accessibility of socially
vulnerable groups - A case study of Changting, China’ (2017) 9 Sustainability at 2; M Truelove ‘Measurement
of spatial equity’ (1993) 11(1) Environment and Planning C: Government and Policy at 19; Ko-Wan Tsou et al
‘An accessibility-based integrated measure of relative spatial equity in urban facilities’ (2005) 22(6) Cities at
424; Mashrur Rahman and Meher Nigar Neema ‘A GIS based integrated approach to measure the spatial equity
of community facilities of Bangladesh’ (2015) 1(1) AIMS Geosciences at 21.
72 Emily Talen and Luc Anselin ‘Assessing spatial equity: an evaluation of measures of accessibility to public
playgrounds’ (1998) 30 Environment and Planning A: Economy and Space at 595.
73 Ibid. See also Paul Mudau ‘Western Cape High Court sets a new benchmark for promoting spatial equity,
access to land and housing’ (2020) 15(3) Local Government Bulletin. The physical sense of spatial equity is
about the equitable development of land use while the socio-economic sense concerns the equitable flow of
goods and services from one spatial area to another, see Joselito Buhangin ‘Spatial equity: A parameter for
sustainable development in indigenous regions’ (2013) 719(2) The Sustainable City at 1343.
12
areas resulting in inequality but equity in access to such facilities”.74 In this vein, inequalities
in terms of facility allocation are distributed in a manner that best serves the most
disadvantaged socially deprived groups.75 According to Lucy,76 equality is one concept of
equity.77 In the context of local government services, equality requires that everyone should
receive the same service from the municipality. Currie and De Waal define equality as
follows:
At its most basic and abstract, the formal idea of equality is that people who are similarly
situated in relevant ways should be treated similarly. Its logical correlative is the idea that
people who are not similarly situated should be treated dissimilarly.78
Bulto submits that “equality dictates the distribution of public resources for the protection
and promotion of, several rights and other prized social goods and services to everyone at
equal measure.”79 Meanwhile, a distinction can be drawn between formal and substantive
equality. Formal equality adopts a neutral norm or standard of measurement in seeking to
eliminate inequality as it extends the same rights and entitlements to all. Under formal
equality, the group’s physical circumstances are immaterial in the determination of whether
the group is entitled to some social benefit or gain.
Contrastingly, with substantive equality, the actual conditions of a disadvantaged group are
taken into consideration in order to ensure that equality is finally realised.80 “The focus of
74 Fajle R Ashik et al ‘Towards vertical spatial equity of urban facilities: An integration of spatial and aspatial
accessibility’ (2020) 9 Journal of Urban Management at 78; Kasturi Mukherjee and Debika Mondal ‘Spatial
equity in urban facility versus residents’ satisfaction: Challenge for the unplanned cities—a case study of
Barasat city, India’ (2022) 87 GeoJournal at 931.
75 Spatial equity means discrimination or preference and privilege accruing to the socially disadvantaged areas
in the distribution of facilities. Consequently, equity strives to redress spatial equality which may indirectly
reinforce and perpetuate the patterns of geographical or physical inequalities. Thus, spatial equity is founded on
the dissimilar abilities and demands of various social groups and their relatively needy areas, whereby these
specific groups receive disproportionately more benefits, see Fajle R Ashik et al op cit note 74 at 78. See also
Yuan et al op cit note 71 at 2.
76 William Lucy ‘Equity and planning for local services’ (1981) 47(4) Journal of the American Planning
Association at 448.
77 Lucy has defined five conceptions of equity: (1) ‘equality’ - equal services for all residents; (2) ‘need’
(consumption level on the basis of need of residents); (3) ‘demand’ - residents having an active enjoyment to a
facility should get more allocation; (4) ‘preferences' - services equal to the preferences of residents; and (5)
‘willingness to pay’ - consumption level depends upon the willingness to pay, Ibid 448- 450.
78 Ian Currie and Johan De Waal The Bill of Rights Handbook (2016) 210.
79 Takele S Bulto ‘The utility of cross-cutting rights in enhancing justiciability of socioeconomic rights in the
African Charter on Human and Peoples’ Rights’ (2010) 29 University of Tasmania Law Review at 142.
80 See Currie and De Waal op cit note 78 at 213.
13
this approach is to reduce inequities in the distribution of facilities by ensuring an unequal
treatment with inequalities”.81 In this regard, the pursuit is on the equality of outcomes
through breaking and remedying the cycle of disadvantage or marginalisation.82
The notion of spatial justice is closely associated with spatial equity. Spatial justice is about
the equitable spatial distribution of socially valued resources and the opportunities to utilise
them.83 Spatial justice resonates with the right to the city.84 The right to the city is a concept
that goes beyond simply having a place to live. It is about ensuring that all residents have the
ability to participate in shaping the city and benefit from its resources. The right to the city
emphasises that everyone, regardless of socio-economic background, ethnicity, or origin,
should have access to affordable housing, public spaces, and essential services within the
city. It requires that citizens should have a say in how their city develops. This includes
involvement in urban planning decisions, community projects such as housing developments,
and holding local government accountable. While access to housing is crucial, the right to the
city encompasses more. It includes the right to a healthy environment, cultural expression,
and economic opportunities within the city.
This Thesis contemplates spatial equity as the most apposite term to use when dealing with
the obligations of local government in relation to the ultimate accomplishment of substantive
spatial equality. Spatial equity, in this Thesis, is employed as the catch-all term that espouses
spatial manifestations of substantive equality and spatial justice.
81 See Ashik et al op cit note 74 at 79.
82 Cathi Albertyn ‘Equality’ in Elsje Bonthuys and Cathi Albertyn (eds) Gender, Law and Justice (2007) at 90.
83 See Soja op cit note 3 at 3.
84 Other commentators allude to a “good city” which is synonymous with the “sustainable city”, see Nisa
Mammon ‘Urban Land Use Regulation in the Context of Developmental Local Government’ in Mirjam Van
Donk et al (eds) Consolidating Developmental Local Government: Lessons from the South African Experience
(2008) at 406. The fundamental characteristics of “good city”, included are a socially just city – where there is a
direct focus on prioritising the basic needs of the poor in order to provide fair and equal distribution of justice,
food, shelter, education, health, and hope; and an integrated, compact city - where access and proximity to
essential goods and services, including emergency services, information, and people, are gained with ease and
safety, especially for those moving on foot, see Dmitry Sivaev ‘What makes a good city strategy?’ (2015) at 9;
Edgar Pieterse ‘Alternative futures of the South African city’ (2005) Digest of South African Architecture at 52;
John Friedmann ‘The good city: In defence of utopian thinking’ (2000) 24(2) International Journal of Urban
and Regional Research at 460; Richard Rogers ‘Cities for a small planet’ in Philip Gumuchdjian (ed) Cities for
a Small Planet (1997).
14
3 The challenge of achieving spatial equity in the 1996 Constitution and the role of
housing
Section 9(2) of the Constitution stipulates that: “Equality includes the full and equal
enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and
other measures designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken”. To such a degree, South Africa’s
Constitution which is the supreme law of the country,85 envisages a society that moves away
from inequalities and injustices of the past and can transform into a substantively equal
society - where there is “full and equal enjoyment of all rights and freedoms”.86
Fuo is of the view that South Africa’s transformation is based on two visions:87
transformative constitutionalism,88 and the government’s constitutional obligation to promote
sustainable development.89 All three spheres of government have a role to play in striving for
the achievement of spatial equity through their housing responsibilities.90 The right of access
to adequate housing which is guaranteed by Section 26(1) of the Constitution imposes legally
85 See Section 2 of the Constitution. The provision states that “this Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”.
See also Koos Malan ‘Deliberating the rule of law and constitutional supremacy from the perspective of the
factual dimension of law’ 2015 (18) 4 Potchefstroom Electronic Law Journal at 1206; Graziella Romeo ‘The
conceptualization of constitutional supremacy: global discourse and legal tradition’ (2020) 21 German Law
Journal at 904. The Bill of Rights contained in Chapter Two of the 1996 South African Constitution “is widely
celebrated for its inclusion of justiciable socio-economic rights, its embrace of substantive equality, and its
fostering of a ‘culture of justification’ for all exercises of public power”, see Edgar Pieterse ‘Urban governance
and spatial transformation ambitions in Johannesburg’ (2019) 41(1) Journal of Urban Affairs at 34.
86 See Section 9(2) of the Constitution. Equally important, the 1996 Constitution also envisages the
establishment of a society based on democratic values, social justice, and fundamental rights, see its Preamble.
87 Oliver Fuo ‘Local government indigent policies in the pursuit of social justice in South Africa through the
lenses of Fraser (2014) 25 Stellenbosch Law Review at 187.
88 Mashele Rapatsa ‘South Africa’s transformative Constitution: from civil and political rights doctrines to
socio-economic rights promises’ (2015) 5 Juridical Tribune at 208; Oliver Fuo ‘The transformative potential of
the constitutional environmental right overlooked in Grootboom’ (2013) 34 Obiter at 77.
89 Penny Urquhart and Doreen Atkinson A Pathway to Sustainability: Local Agenda 21 in South Africa (2002)
20-21; Jaap de Visser ‘Institutional framework for developmental local government: Making good on the
promise of development’ (2001) at 2-3.
90 Housing is a concurrent competency of national and provincial governments as provided in Schedule 4A of
the 1996 Constitution; provinces facilitate and promote the provision of adequate housing within the province
and within the framework of national policy; and municipalities implement the process of integrated
development planning within the framework of national and provincial housing legislation and policy. See
Financial and Fiscal Commission ‘The impact of unfunded mandates in South African intergovernmental
relations’ (2011).
15
binding duties on the State.91 To varying degrees, these duties are shared by the three spheres
of government and other organs of the State.92
Although spatial equity is not explicitly ensconced in the Bill of Rights contained in Chapter
Two of the Constitution,93 the spatial inequalities that are shown by poor living conditions,
continuous struggles for basic amenities, severe shortages of housing stock, and an
infrastructure backlog,94 can amount to indirect racial discrimination under Section 9(3).95
These inequalities implicate Section 9(2) of the Constitution.
The transformative character of the Constitution bears three features that may be advanced to
remedy existing spatial inequalities. These three features do not merely reflect the
Constitution as preserving the status quo in post-apartheid South Africa “but anticipated and
mandated the large-scale material transformation of post-apartheid society in an egalitarian
direction”.96 Borrowing from the descriptive precision of le Roux, these features are summed
up as follows:
The first is the equality provision (section 9) which defines equality as the full and equal
enjoyment of all rights and freedoms, thus mandating a holistic or integrated approach to the
advancement of rights. The second is the inclusion of social justice as a fundamental value
of the constitutional order and thus an anticipated redirection of state resources in terms of
section 7(2) over and above the protection of individual freedoms. The third is the inclusion
of a series of specific socio-economic rights, … and a positive obligation on the state to take
reasonable measures to progressively realise these rights.97
91 See Section 26(2) of the Constitution. In addition, Section 8(1) of the Constitution provides that the Bill of
Rights binds all organs of the State.
92 Oliver Fuo ‘Nativism in South African municipal indigent policies through a human rights lens’ (2020) 24
Law, Democracy & Development at 282.
93 The Constitution does not contain an express and clear-cut provision that refers to spatial equity.
94 Devan Pillay ‘Introduction: The global crisis of inequality and its South African manifestations’ in Gilbert M
Khadiagala et al (eds) New South African Review 6: The Crisis of Inequality (ed) (2018) 1 at 2. See also Neva
op cit note 59 at 17-18; Claudia Basta ‘From justice in planning towards planning for justice: A capability
approach’ (2016) 15(2) Planning Theory at 190.
95 See Pretoria City Council v Walker 1998 (2) SA 363 (CC) at para 105.
96 Wessel le Roux ‘Advancing domestic workers’ rights in a context of transformative constitutionalism’ in
Darcy du Toit (ed) Exploited, undervalued - and essential: Domestic workers and the realisation of their rights
(2013) at 46.
97 Ibid.
16
South Africa is informed by the values of justice, equality, and equity. Significantly, Albertyn
argues that the idea of substantive equality can address diverse forms of social and economic
inequality and that the legal form of substantive equality as adopted by the Constitutional
Court has some potential for achieving meaningful social and economic changes.98 Recall
that the Constitution in Section 25(5), provides that: “The state must take reasonable
legislative and other measures, within its available resources, to foster conditions which
enable citizens to gain access to land on an equitable basis”. In the same vein, within the
national and provincial legislative, regulatory, and policy framework, Section 5(b)(i) of the
Social Housing Act,99 states that a municipality must provide access to land and buildings for
social housing development in designated restructuring zones. Hence, the intertwining
relationship between spatial planning, land reform, and housing is central to the pursuit of
addressing embedded spatial inequalities and inadequate housing predicaments in South
Africa.
The Socio-Economic Rights Institute of South Africa (SERI) captures the plight of the urban
poor without adequate housing as follows:
Despite constitutionally mandated land reform measures, the post-apartheid state has not yet
been able to address the legacy of apartheid spatial planning. Black South Africans are
disproportionately confined to urban peripheries in dense and poorly serviced settlements,
have very low rates of home ownership, and sometimes live in extremely peripheral peri-
urban areas which, without the apartheid context, makes no sense at all.100
The fundamental pursuit of spatial transformation in South Africa is also aligned with the
United Nations Sustainable Development Goals (SDG) Agenda 2030. SDGs 10 and 11
98 See Cathi Albertyn ‘Substantive equality and transformation in South Africa’ (2007) 23(2) South African
Journal on Human Rights at 253. Albertyn and Goldblatt critically engage with the development of equality
jurisprudence by the Constitutional Court in order to assess the extent to which the conceptualisation,
interpretation and application of the right meets the lofty objectives of substantive equality as envisioned by the
transformative Constitution, see Cathi Albertyn and Beth Goldblatt (1998) 14(2) ‘Facing the Challenge of
Transformation: Difficulties in the development of an indigenous jurisprudence of equality’ South African
Journal on Human Rights at 247.
99 The Social Housing Act 16 of 2008.
100 Socio-Economic Rights Institute of South Africa (SERI) ‘Informal settlements and human rights in South
Africa: Submission to the United Nations Special Rapporteur on adequate housing as a component of the right
to an adequate standard of living’ (2018) at 14. See also Charlotte Lemanski ‘Citizens in the middle class: The
interstitial policy spaces of South Africa’s housing gap’ (2017) 79 Geoforum at 101.
17
provide for the reduction of inequalities,101 and the creation of sustainable cities and
communities.102 The 2030 Agenda calls for a “just, equitable, tolerant, open and socially
inclusive world in which the needs of the most vulnerable are met.”103 The achievement of all
these essential variables will lead to equal access to public infrastructure, basic amenities, and
essential services and ensure that through social inclusion and cohesion, socially vulnerable
groups have increased opportunities to enjoy their livelihoods too.
The United Nations Human Settlements Programme (UN-HABITAT) submits that SDG 11
of the 2030 Agenda includes a dedicated goal on human settlements that sets out to make
cities inclusive, safe, resilient, and sustainable. The international community reached a
consensus on endorsing a stand-alone goal for cities (Goal 11). This goal is referred to as the
“urban SDG” and is treated as an explicit recognition that urbanisation and city growth are
transformative forces for development.104 Goal 11 adds to the inroads made by the
Millennium Development Goal (MDG) 7 on the reduction of slums and improvement of
basic services.105
As the engines of development, metropolitan cities are given the task of driving spatial
transformation. The promotion of inclusive cities that simultaneously accommodate the
socio-economic well-being of the urban poor population should be a basic tenet for urban
planning. In this regard, the UN-HABITAT professes a bold account of the constructive
impact of cities in transforming the fortunes of human welfare:
Cities have become a positive and potent force for addressing sustainable economic growth,
development and prosperity. They drive innovation, consumption and investment in both
developed and developing countries. Cities are productive systems through which most of
101 The United Nation’s Sustainable Development Goals (SDG) 10: reduce inequalities within and among
countries.
102 The UN’s SDG 11: Make cities and human settlements inclusive, safe, resilient and sustainable.
103 World Bank ‘Sustainable Development Goal 10 – Reduced inequalities: Progress and prospects’ (2019) at 2,
available at https://tinyurl.com/2fd9dj3p (accessed on 08 August 2022).
104 The United Nations Human Settlements Programme (UN-HABITAT) ‘Sustainable Development Goals -
Monitoring Human Settlements Indicators: A short guide to human settlements indicators goal 11+’ (n.d) at 5.
105 The official slogan for MDG 7 - Target 11 is ‘Cities Without Slums’. It implies that cities should not have
‘slums’.
https://tinyurl.com/2fd9dj3p
18
the 21st century challenges such as poverty, inequality, unemployment, environmental
degradation, and climate change can be addressed.106
Certainly, there is an objective need to effectively manage spatial planning while efficiently
monitoring and evaluating the relevant policy formulations and implementations on the
ground. Common concerns arise from the lack of congruence between these plans and the
actual reality of cities.107 There are shortcomings in the State’s ability to scrutinise and
control urban development in cities.108 This results in low compliance with planning laws and
policies, as well as the perpetuation of marginalising the urban poor. The poor struggle to
lead decent city lives and to afford decent housing as well as access to basic amenities and
essential services. Almost three decades into a constitutional democracy, the country is still
trapped by the artifacts of apartheid geography which is a spatial manifestation of race, class,
and inequality.109
4 Research problem, research questions, research objectives, and research methodology
Post-apartheid, the South African State is struggling to address spatial segregation.110
Metropolitan municipalities are hounded by “large deficiencies and inadequacies in terms of
fulfilling their constitutional and legislative obligations”.111 The pragmatic shift of the Spatial
Development Frameworks (SDFs) of the three spheres of government promotes a more
compact and connected urban development, with higher residential densities in the inner
city.112 Nonetheless, flaws in government policy and its sluggish implementation militate
against the progressive spatial transformation. More problematically, the current spatial
106 UN-HABITAT ‘What is a city?’ (2020) at 2. See also Richard de Satgé and Vanessa Watson ‘African cities:
Planning ambitions and planning realities’ in Richard de Satgé and Vanessa Watson (eds) Urban planning in the
global south: Conflicting rationalities in contested urban space (2018) at 35.
107 See Denoon-Stevens et al op cit note 15 at 2; Eunice Fontão ‘The reality of spatial plans is delaying the
growth of sustainable buildings’ (2020) 6(1) Energy Reports at 38.
108 Kwasi G Baffour Awuah and Felix N Hammond ‘Determinants of low land use planning regulation
compliance rate in Ghana’ (2014) 41 Habitat International at 17; Wilfred Ochieng Omollo ‘Compliance with
planning standards related to the setbacks around domestic buildings: Empirical evidence from Kenya’ (2020)
4(2) Journal of Contemporary Urban Affairs at 95.
109 Jo-Ansie van Wyk ‘The geography of nuclear power, class and inequality’ in Gilbert M Khadiagala et al
(eds) New South African Review 6: The Crisis of Inequality (ed) (2018) at 269. The Bill of Rights contained in
Chapter Two of the 1996 South African Constitution “is widely celebrated for its inclusion of justiciable socio-
economic rights, its embrace of substantive equality, and its fostering of a ‘culture of justification’ for all
exercises of public power”, see Pieterse op cit note 85 at 34.
110 Nomalanga Mkhize ‘The Politics of Urban Land and Ownership: Locating spatial transformation in the urban
land question’ (2015) 1 The Urban Land Paper Series at 2.
111 See Madumo and Koma op cit note 65 at 583.
112 Ibid 18-19.
19
patterns in urban areas bear an inclination toward reinforcing the past spatial and social
divisions.
Mkhize ponders if the local government is a “regulator, participant or bystander” in the quest
for spatial transformation.113 Municipalities downplay their housing role. They limit
themselves to the enforcement of building regulations and health and safety by-laws,114 and
as lacking “substantive housing provision obligations”.115 Both spatially and legally, South
Africa’s transition has impacted intensely on the functioning of cities. The reconfiguration of
the local governance system requires it to directly address the socio-economic challenges and
to strive to achieve spatial transformation of urban life.116 The practical provision of access to
housing in well-located land can elevate socially disadvantaged groups. The requisite legal,
institutional and structural commitment from the government in terms of directing sufficient
resources can ensure that everyone has access to adequate housing.117
This Thesis, hence, looks at the role of the local government in pursuing the achievement of
spatial equity through its involvement in the progressive realisation of the right to access
adequate housing. The quest to give effect to the right to housing is evidently about meeting
local government’s developmental obligations, objectives of the Spatial Planning and Land
Use Management Act (SPLUMA),118 and constitutional aspirations. At face value, it appears
that between its housing and spatial planning powers, there are challenges in the current role
and responsibilities of local government in the context of achieving spatial equity. When it
comes to its role in housing, there is seemingly a further disconnect between its
responsibilities emerging from court judgments on the right to housing, and its powers,
functions, resources, and responsibilities in terms of the Constitution and applicable
legislation.
Most socio-economic rights cases that were adjudicated by the Constitutional Court have
elaborated on the justiciability of the right to housing against the local government. Cases
113 See Mkhize op cit note 110 at 5.
114 See Pieterse op cit note 19 at 168-169.
115 Ibid 169.
116 Ibid 150. See also Port Elizabeth Municipality v Various Occupiers 2005 (1) SA (CC) para 10.
117 T Manomano ‘Inadequate housing and homelessness, with specific reference to South Africa and Australia’
(2022) 12(4) African Journal of Development Studies at 93.
118 16 of 2013. See also Jeannie van Wyk ‘Can SPLUMA play a role in transforming spatial injustice to spatial
justice in housing in South Africa?’ (2015) 30 Southern African Public Law at 27.
20
such as Blue Moonlight119 and Joe Slovo120 illustrate the bind in which municipalities find
themselves – they have limited power, policy scope, and budget for housing. Yet, the courts
appear to be assigning them increased housing responsibilities which, arguably, they are not
adequately legally equipped nor empowered to fully comply. The problem which therefore
unfolds relates to the inevitable need to reconcile the obligations to realise the right of access
to adequate housing with the limited (and quite complex, contradictory, subservient, and
uneven) role that local government plays in housing delivery,121 as well as with the limited
resources at its disposal.122 The challenges associated with the realisation of local
government’s housing-related powers, functions, and responsibilities become more
complicated when viewed through the lens of SDFs.123
The primary research question of the study is as follows: How should the role, powers,
functions, and responsibilities of local government in relation to the realisation of the right of
access to adequate housing be reconfigured considering constitutional, legal, and policy goals
pertaining to the achievement of spatial equity?
Secondary questions which are also addressed with the view of developing the primary
research question, are as follows:
(a) How does the current role of local government in relation to the right to housing relate to
its role in relation to achieving spatial equity?
(b) Based on constitutional, legislative, and policy frameworks as well as the courts’
jurisprudence, what are the local government’s responsibilities, powers, and functions
regarding housing?
119 See City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another
2012 (2) SA 104 (CC).
120 See Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 545 (CC).
121 Louis G Lategan A study of the current South African housing environment with specific reference to
possible alternative approaches to improve living conditions (unpublished master’s dissertation, North-West
University, 2012) 52.
122 S M Binza ‘The evolution of South African local governments: The politics of memory’ (2005) 30(2)
Journal for Contemporary History at 81. See also Parliamentary Monitoring Group ‘Local Government issues:
Financial and Fiscal Commission recommendations & research’ (2010), available at
<https://pmg.org.za/committee-meeting/12315/> (accessed on 06 May 2020).
123 To local government, the process of identifying and designating land for housing development is
cumbersome due to the disjuncture between spatial plans and housing strategies, see Thembi Mabhula ‘Red tape
and its effects on the housing process’ (2011), available at <http://www.ngopulse.org/article/red-tape-and-its-
effects-housing-process> (accessed on 10 June 2020). See also Marius Pieterse ‘Legislative and executive
translation of the right to have access to health care services’ (2010) 14 Law, Democracy & Development at 1.
https://pmg.org.za/committee-meeting/12315/
21
(c) Based on constitutional, legislative, and policy frameworks as well as the courts’
jurisprudence, what are the local government’s responsibilities, powers, and functions
regarding spatial planning?
(d) Between its housing and spatial planning powers, what are the challenges in the current
role and responsibilities of local government in the context of achieving spatial equity
and how could these be remedied?
(e) How should the role of local government in housing be reconceptualised to match its
rights-related responsibilities and its role in achieving spatial equity?
The primary objective of the study is to investigate the role and obligations of local
government in the realisation of the right of access to adequate housing, and the
interdependence of this with its role in the achievement of spatial equity in South Africa.
Thus, from the interplay of local government law and human rights law, the focal point is the
reconciliation of the enormous constitutional, legislative, policy, and judicial obligations
imposed on local government with its actual limited financial resources, institutional
capacity, and structural role in the realisation of the right of access to adequate housing and
spatial equity. Accordingly, the Thesis aims at identifying and elaborating on the disconnects
alluded to above and considering ways in which they could be remedied. The study also
critically engages with the applicable laws in this context and proposes appropriate reforms.
To comprehend and analyse the broad spectrum of the status quo relating to the correlation,
between spatial inequalities and housing inadequacies in South Africa, the study is desk-
based. The Thesis also draws on literature from different disciplines or fields of study: law,
urban governance, planning, landscape ecology, human health, environmental management,
and transportation. Both primary and secondary sources are used to compile the literature.
The primary materials include international and regional legal instruments, the 1996
Constitution, legislation, policy frameworks, case laws, and official documents of different
spheres of government and those of the selected case studies of the metropolitan
municipalities of Cape Town, Johannesburg, and eThekwini. The secondary materials
comprise textbooks, journal articles, working and conference papers as well as reliable
sources from the internet.
22
5 Literature review
A vast literature exists about the roles, powers, functions, and responsibilities of local
government in the new constitutional dispensation. This literature engages the division of
responsibilities in Schedules 4 and 5 of the Constitution and bemoans the fuzzy delegation of
housing powers.124 There is significant literature that interrogates the content and
implications of the right to have access to adequate housing. This literature tends to focus on
the judgments of the Constitutional Court that have vindicated this right.125 It mostly focuses
on the strengths and weaknesses of the Court’s adjudicative approach and is not concerned
with the practical implications of the judgments for the duty-bearers. Specifically, there is
little or no engagement with the impact of the judgments and their effects on local
government.126
While significantly dealing with the implementation of the right of access to housing, with a
precise focus on local government,127 some works predate the promulgation of the relevant
legal frameworks and the subsequent housing-related court judgments that profoundly
implicate the local government in terms of realising the right of access to adequate
housing.128 For instance, Strauss and Liebenberg evaluate the contribution of the
Constitutional Court’s jurisprudence on the right to housing regarding the evictions of the
poor from their homes in heavily populated urban areas, to the transformation of South
Africa’s urban housing landscape.129
124 Jaap de Visser ‘A perspective on local government's role in realising the right to housing and the answer of
the Grootboom judgment’ (2004) 7 Law, Democracy & Development at 201; David Pottie ‘Local government
and housing in South Africa: managing demand and enabling markets’ (2004) 14(5) Development in Practice at
61; Lategan op cit note 121 at 49.
125 For example, see de Visser op cit note 124 at 201; see de Wet op cit note 4 at 118; Pierre de Vos and Warren
Freedman South Africa Constitutional Law in Context (2014) 802; see Currie and De Waal op cit note 78 at
584-589.
126 For example, see Lilian Chenwi ‘A New Approach to Remedies in Socio-Economic Rights Adjudication:
Occupiers of 51 Olivia Road and Others v City of Johannesburg and Others’ in Stuart Woolman et al (eds)
Constitutional Court Review (2009) 2; Sandra Liebenberg Socio-economic Rights: Adjudication Under
Transformative Constitution (2010).
127 For example, see de Visser op cit note 124; see Pottie op cit note 124 at 32.
128 For example, the Breaking New Ground: A Comprehensive Plan for the Development of Sustainable Human
Settlements (BNG) and Spatial Planning and Land Use Management Act 16 of 2013 as well as the Occupiers of
51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg and Others 2008
(3) 208 (CC); Dladla and Another v City of Johannesburg and Others (CCT124/16) [2017]; 2018 (2) SA 327
(CC), Joe Slovo, and Blue Moonlight, cases.
129 They view local government’s responsibilities flowing from the constitutional right to housing as related to
the local government’s role in the achievement of spatial justice, but they do not address the disconnect with
which this thesis is concerned, nor do they begin to contemplate the appropriate role for local government
pursuing spatial equity through/in tandem with the right of access to adequate housing, see Margot Strauss and
23
The work of Pieterse130 provides a comprehensive description of arguments relating to the
overlap between legal and social and spatial justice in the particular context of the City of
Johannesburg.131 From the interplay between the disciplines of law, urban geography, and
urban planning as well as from case law concerning the invocation of constitutional rights in
Johannesburg and other cities, the work critically examines the extent of the invocation of
legal rights through adjudication in the advancement of social justice in the city. Pieterse also
explores the powers and capacity of the city of Johannesburg in restructuring urban
governance through the lens of spatial transformation.132
The literature on substantive equality is largely disconnected from the literature on the right
to housing, however, with a few exceptions. Some works133 provide the links between
substantive equality and socio-economic rights – and these exceptions deal with socio-
economic rights generally and not with housing specifically, and they do not engage spatial
inequality at all. The commitment to equality as envisaged by Section 9 of the Constitution
entails recognising the shifting patterns of inequality.134 For spatial planning, this means
eradicating racial discrimination in relation to, among others, access to land, housing, and
urban real estate markets.135
In the literature review, it appears that there are challenges in terms of intertwining the role of
local government in realising the right to housing and its role in achieving spatial equity. The
challenges arise between its limited role, powers, and functions in the provision of housing,
Sandra Liebenberg ‘Contested spaces: Housing rights and eviction law in post-apartheid South Africa’ (2014)
13(3) Planning Theory 428, at 151 at 431.
130 Marius Pieterse Rights-based Litigation, Urban Governance and Social Justice in South Africa: The Right to
Joburg (2017) 50.
131 Including ‘the location of alternative accommodation, the need for permanent inner city housing solutions
and the parameters and minimum requirements for meaningful engagement’, Ibid 70.
132 See Pieterse op cit note 85 at 20. Furthermore, Madlalate explores the powers and capacity of the city of
Johannesburg in restructuring urban governance through the lens of spatial transformation, see Ralph Madlalate
‘(In)Equality at the intersection of race and space in Johannesburg’ (2017) 33(3) South African Journal on
Human Rights at 472.
133 Pierre de Vos ‘Grootboom, the right of access to housing and substantive equality as contextual fairness’
(2001) 17(2) South Africa Journal on Human Rights at 258. See also Sandra Fredman ‘Engendering socio-
economic rights’ (2009) 25(3) South Africa Journal on Human Rights at 410. Sandra Liebenberg and Beth
Goldblatt ‘The interrelation ship between equality and socio-economic under South Africa’s transformative
constitution’ (2007) 23(3) South Africa Journal on Human Rights at 335.
134 See Currie and De Waal op cit note 78 at 212.
135 Jeannie van Wyk and Mark Oranje ‘The post-1994 South African spatial planning system and Bill of Rights:
A meaningful and mutually beneficial fit?’ (2014) 13(4) Planning Theory at 362.
24
on the one hand, and its responsibilities emerging from court judgments on the right to access
adequate housing, on the other. The numerous missing links and gaps in the literature
overlap precisely with the challenges highlighted above as the socio-economic rights
literature does not focus on the local government’s role, while the local government literature
does not deal with how this intersects with rights. The spatial planning and equity literature
refrains from engaging with any of the above and, in a limited manner, the right to equality
literature deals with some of these issues superficially. Accordingly, there is limited literature
that focuses on the local government’s role in realising the right to housing through the
achievement of spatial equity. This Thesis therefore serves to fill these gaps in the literature.
6 Terminological clarifications
The purpose of this section is to succinctly define key concepts that outline and clarify the
nature and standards of how local government powers, responsibilities, functions, and roles
are allocated in terms of law. The applicable terms include decentralisation, delegation, and
devolution.
The term “decentralisation” is a multi-faceted concept.136 Scholars offer varying degrees and
conflicting definitions and conceptions as to its meaning.137 Both the narrow and broad
meaning of decentralisation are contained in the literature,138 and are used interchangeably,
resulting in disorientation.139 In the narrow sense, the decentralisation process involves the
non-compulsory and non-permanent transfer of power by the national government to the sub-
national levels of government.140 Its typical structure has a hierarchy that denotes “a pyramid
of governments with gradations of power flowing down from the top”.141 Accordingly, “if
there was no centre, there would be no decentralisation but rather two or more completely
136 Charles M Fombad ‘Constitutional entrenchment of decentralisation in Africa: An overview of trends and
tendencies’ (2018) (62)2 Journal for African Law at 178.
137 Roberta Ryan and Ronald Woods ‘Decentralization and Subnational Governance: Theory and Praxis’ in Eris
Schoburgh and Roberta Ryan (eds) Handbook of Research on Sub-National Governance and Development
(2017) at 1.
138 Nico Steytler ‘The Relationship between Decentralisation and Constitutionalism in Africa: Concepts,
Conflicts and Hypothesis’ in Charles Manga Fombad and Nico Steytler (eds) Decentralisation and
Constitutionalism in Africa (2019) at 31.
139 Jaap de Visser Developmental Local Government: A Case Study of South Africa (2005) 13.
140 Daniel J Elazar ‘Federalism vs decentralization: The drift from authenticity’ in John Kincaid (ed) Federalism
(2011) at 79-88.
141 Ibid 83; Conrad Bosire ‘The Constitutional and Legal Framework of Devolved Government and its
Relevance to Development in Kenya’ in Morris K Mbondenyi et al (eds) Human rights and democratic
governance in Kenya: A post-2007 appraisal (2015) at 214.
25
separate entities”.142 In the South African context, a provincial government may also be
regarded as a centre in relation to local government.
In terms of the African Charter on the Values and Principles of Decen